A client of Ukrainian origin recently approached the law firm. Her partner, also a Ukrainian, is staying in Poland illegally. She asked that the illegal stay be turned into a legal stay. This is because they no longer have the strength to live in constant fear. They are afraid that they will be forced to leave Poland. And it is with our country that they bind their future. They would like to live, work and bring up their children in Poland. So, in today's article, I am going to answer a fundamental question on this issue, namely: How to legalise an illegal stay of a foreigner in Poland?
I invite you to read on.
Illegal stay, or what kind of stay?
We will not find a definition of illegal residence in any law. However, according to court rulings, this will refer to a foreigner's stay on the territory of Poland without valid residence documents, which he/she is obliged to have by virtue of legal provisions, in particular the Act of 12.12.2013 on Foreigners. This includes a biometric passport, visa, temporary or permanent residence permit, among others.
I have looked into the Act and.
Indeed, stay of the client's partner in Poland was to be regarded as illegal. As a result of his own recklessness and negligence, Mr Vitaly overlooked several issues. After submitting an application to the Governor for a temporary permit for residence missed the deadline for completing the documents. Failed to appear in person within 7 days of service of the summons for fingerprinting. . Vitaly also overlooked the 7-day deadline for submitting a request for the reinstatement of the deadline. As a result of all the negligence, he did not complete the documentation in due time. He also failed to appear at the summons of the authority.
The governor left the case unresolved. In the meantime, the visa expired. To this day, Mr Vitalij remains in Poland illegally. What could be lost through his recklessness? A lot, including a well-paid job. The employer is obliged to regularly check the validity of residence permits. There are high fines for employing foreigners without valid documents. It is also possible to impose a ban on employing such people in the future. It does not matter that the work permit is still valid.
An employer cannot employ a foreigner who does not have valid residence permits
Mr Vitaly is in Poland, unemployed and dependent on his partner. He would like to travel to Ukraine to start applying for a work visa. However, he cannot do so, as the Border Guard would immediately initiate a "return" procedure. This would result in him being added to the list of persons whose presence in Poland is undesirable for up to five years. They live in constant fear, afraid to go out freely on the street. Even a simple document check could lead to drama.
Illegal residence and the chance of legalisation
After reviewing the documentation and analysing Mr Vitaly's situation, it must be concluded that ... the case is not simple.
The general rule in the Aliens Act is:
"a temporary residence permit in Poland shall be refused to a foreigner who has submitted an application during an illegal stay on the territory of the Republic of Poland or is illegally staying on that territory."
Light at the end of the tunnel
There are a few exceptions to this rule provided for in the aforementioned Act. This means that in certain cases it is possible to apply for a temporary residence permit even if a person is staying in Poland illegally.
1/ Temporary residence permit due to other circumstances
A residence permit may be granted to a foreigner if his/her stay on the territory of the Republic of Poland is necessary due to the need to respect the right to family life within the meaning of the Convention for the Protection of Human Rights and Fundamental Freedoms, drawn up in Rome on 4 November 1950, and the foreigner is staying on the territory of the Republic of Poland illegally.
In the proceedings, it must be demonstrated that the foreigner's presence in Poland is necessary to respect the right to family life. In practice, this will mean, among other things, demonstrating the existence of deep family ties and the impossibility of leading family life in another country.
The indicated regulation only provides for the possibility (and not the obligation) to legalise the stay. In addition, only and exclusively in those cases where leaving the territory of the Republic of Poland by the foreigner would involve a violation of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Otherwise, the foreigner's stay in Poland could not be considered as necessary.
As a general rule, marriages and the bonds between parents and minor children are considered family life. Unless there has been a permanent severance of these ties. The same applies to long-term cohabitation.
The application for a permit must be meticulously substantiated. It must then be submitted to the Provincial Office of the applicant's place of residence. The waiting period for a decision is 30 days. However, it can be extended. You have to provide documents proving that you have a joint family life. This is not always easy. By way of example, this could be a joint tenancy agreement, a work permit or a joint loan. A negative decision can be appealed to the Foreigners Authority, including a complaint to the Administrative Court. If the decision becomes final and the authority or the court does not take into account the arguments for protection of family life, it will be necessary to leave Poland within 30 days from the day the decision became final.
The submission of the application and the stamp in the passport results in the legalisation of the stay in Poland. The same is the case with all applications for temporary permits.
A temporary residence permit may also be granted to a foreigner if his/her departure from the territory of the Republic of Poland would violate the rights of the child as set out in the Convention on the Rights of the Child adopted by the United Nations General Assembly on 20 November 1989 to an extent that would significantly endanger his/her psychophysical development, and the foreigner is staying on the territory of the Republic of Poland illegally.
2/ Family reunification
Spouses of all third-country nationals 'eligible' for family reunification will be able to obtain a temporary residence permit despite undocumented residence in Poland.
However, in this case it is necessary to marry a Polish citizen or a foreigner legally residing in Poland, as a family member is a person who is married to a foreigner legally residing on the territory of Poland in a marriage recognised by Polish law, as well as a minor child of the foreigner and the person married to him/her, including an adopted child. This permit may also be applied for by a foreigner legally residing in Poland for a family member residing abroad, which is an exception to the rule that the residence permit must be submitted in person.
3/ Short-term residence permit
A foreigner who is staying in Poland illegally may be issued a residence permit due to the need to appear in person before a Polish public authority or due to an exceptional personal situation or to the interests of Poland.
This permit is granted for the period necessary to fulfil the purpose of the foreigner's stay, but no longer than 6 months.
While staying on the basis of this permit, the foreigner is not able to apply for further legalisation of his/her stay under the ordinary rules, i.e. it is not possible to apply for a temporary residence permit due to a different purpose of stay, a permanent residence permit, a residence permit for a long-term EU resident. On the other hand, he/she can already leave legally to his/her own country on this basis and apply for a visa there.
4/ Consent to stay for humanitarian reasons or for tolerated stay
The Aliens Act also provides for the institution of a residence permit for humanitarian reasons. It will be issued when the foreigner's return to his/her country of origin would constitute a violation of his/her human rights, inter alia the right to freedom from torture or the right to family or private life in the sense of the provisions of the Rome Convention. This third possibility will be encountered in the "return" procedure itself, i.e. in the proceedings aimed at expelling a foreigner from Poland conducted by the Border Guard.
As can be seen above, despite an illegal stay, there is a chance to legalise it. Which legal basis to use will depend on the individual case. Indeed, each case must be approached individually. With great care and insight, all the facts must be analysed. It is crucial to explain the situation accurately in the permit application or return procedure. The solution for an illegal stay should be sought while staying in Poland. The chances of positive regularisation of stay decrease if illegal stay will only be detected when attempting to cross the border.
